European Court of Human Rights

SMITH AND GRADY v. THE UNITED KINGDOM¹

(Applications nos. 33985/96 and 33986/96)

THIRD SECTION

JUDGMENT OF 27 SEPTEMBER 1999

SUMMARY¹

Discharge of homosexuals from the armed forces following instrusive investigations
Effectiveness of judicial review as a remedy in respect of complaint concerning privacy

Article 3

Degrading treatment – Instrusive investigations into private lives of homosexuals in the armed forces – Minimum level of severity

Article 8

Private life – Blanket ban on homosexuals in the armed forces – Discharge of homosexuals from the armed forces – Intrusive investigations into private lives of homosexuals – Interference – Severity of interference – National security – Prevention of disorder – Necessary in a democratic society – Proportionality – Requirement of convincing and weighty reasons justifying interference

Article 13

Effective remedy – Judicial review – Test of irrationality applied by domestic courts precluding examination of necessity and proportionality

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The applicants were respectively a senior aircraft woman and a sergeant in the Royal Air Force. At the relevant time, the armed forces operated a blanket ban on homosexuals. The first applicant admitted to being homosexual during a pre-disciplinary interview following her absence without leave. She and her partner were then interviewed by the service police, who prepared a report recommending the applicant’s administrative discharge. The second applicant was also suspected of being homosexual. The service police interviewed his wife and several acquaintances before also interviewing the applicant who, after initially denying that he was homosexual, admitted that he was. He was then questioned further. The interviews with both applicants involved questions about the nature of their respective homosexual relationships. Both applicants were duly discharged from the armed forces. Their applications for judicial review were dismissed on the ground that, although the applicants had exemplary service records and there was no suggestion that their sexual orientation had in any way affected their ability to carry out their work, it could not be said that the decision to discharge them was irrational, this being the test to be applied. Their appeal was dismissed by the Court of Appeal and leave to appeal to the House of Lords was refused.

Held

(1)  Article 8: As to whether there had been an interference with the right to respect for private life, the Government had not claimed that the applicants had waived their rights under Article 8 when joining the armed forces and the applicants had not been dismissed for failing to disclose their homosexuality at that time. Moreover, there was evidence that the first applicant had only become aware of her homosexuality after being recruited. The investigations, which had included detailed interviews with the applicants and others concerning their sexual orientation and practices, together with the preparation of a report, constituted a direct interference, as did their subsequent discharge on the sole ground of their sexual orientation. These interferences were in accordance with the law and the policy of excluding homosexuals from the armed forces could be said to pursue the legitimate aims of the interests of national security and the prevention of disorder. While there was doubt as to whether the investigations continued to serve any such aim once the applicants had admitted their homosexuality, it was unnecessary to decide this question.

As to the necessity of the interferences, the sole reason for the investigations and discharges was the applicants’ sexual orientation. Since this concerned a most intimate aspect of an individual’s private life, particularly serious reasons were required by way of justification. The interferences were especially grave due to, firstly the exceptionally intrusive character of the investigation process, involving detailed questions about sexual practices and preferences, secondly the profound effect which discharge had had on the applicants’ career prospects, including the difficulty in finding equivalent positions in civilian life, and thirdly the absolute and general character of the policy, which allowed discharge on the grounds of innate personal characteristics rather than conduct. Even if the surveys conducted by the armed forces were representative of the views of personnel – which was open to some doubt – the problems identified as a threat to the operational effectiveness of the armed forces were founded solely on the negative attitudes of heterosexual personnel towards a homosexual minority. To the extent that such attitudes represented a predisposed bias, they could not in themselves amount to sufficient justification for the interferences. There was a lack of concrete evidence of the damage to morale and fighting power which a change in the policy would allegedly entail. It could reasonably be assumed that some difficulties might be anticipated, but steps had already been taken to deal with, for example, racial discrimination, and negative attitudes were not sufficient to justify the rejection of a proposed alternative policy; it had not been established that codes of conduct and disciplinary rules would prove ineffective to deal adequately with the potential problems. Furthermore, widespread and consistently developing views and associated legal changes in the Contracting States – in only a few of which there existed such a blanket ban – could not be overlooked. In conclusion, the Government had not offered convincing and weighty reasons to justify the policy or the consequent discharge of the applicants. With regard to the continuation of the investigations after the applicants’ admissions, separate examination was required. It was clear that the applicants had wished to remain in the air force and the risk of false claims being made could not provide justification; moreover, neither the risk of blackmail nor any clinical risks provided justification. Consequently, no convincing and weighty reasons had been given by the Government.

Conclusion: violation (unanimously).

(2)  Article 14 taken in conjunction with Article 8: This complaint amounted in effect to the same complaint, albeit seen from a different angle, as that considered under Article 8.

Conclusion: no separate issue (unanimously).

(3)  Article 3 taken alone and in conjunction with Article 14: Whilst it could not be excluded that treatment grounded on a predisposed bias against homosexuals of the nature described by the applicants could in principle fall within the scope of Article 3, and the policy, investigations and discharges had undoubtedly been distressing and humiliating for the applicants, the treatment did not reach the minimum level of severity required by that provision.

Conclusion: no violation (unanimously).

(4)  Article 10 taken alone and in conjunction with Article 14: It could not be ruled out that the silence imposed on the applicants as regards their sexual orientation could constitute an interference with their freedom of expression. However, the subject matter of the policy and the sole ground for the investigations and discharges was an essentially private manifestation of human personality. The freedom of expression element was subsidiary and it was unnecessary to examine these complaints.

Conclusion: not necessary to examine (unanimously).

(5)  Article 13: Since the Convention did not form part of English law, the questions as to whether the application of the policy violated the applicants' rights under Article 8 – and in particular whether the policy had been shown to respond to a pressing social need or to be proportionate – could not be properly answered by the domestic courts, before which the sole issue was whether the decisions were irrational. The threshold in that respect was so high that any consideration of the necessity and proportionality was effectively precluded. Consequently, the applicants did not have an effective remedy available.

Conclusion: violation (unanimously).

Article 41: The Court considered that the question of the application of Article 41 was not ready for decision and reserved the said question.

Case-law cited by the Court

Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22

Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25

Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26

Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45

Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94

Norris v. Ireland, judgment of 26 October 1988, Series A no. 142

Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215

Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A

Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, judgment of 19 December 1994, Series A no. 302

Vogt v. Germany, judgment of 26 September 1995, Series A no. 323

Kalaç v. Turkey, judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV

Grigoriades v. Greece, judgment of 25 November 1997, Reports 1997-VII

Larissis and Others v. Greece, judgment of 24 February 1998, Reports 1998-I